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may make. the return is ill, and there must be a peremptory mandamus.

Stra. 891. Person (s) 8. That testament is to be repelled, which is made upon under fear just fear, that is, such a fear as may move a constant man; as of restraint. the fear of death, or of bodily hurt, or of imprisonment, or of

the loss of all or most part of one's goods, or the like. Whereof no certain rule can be delivered, but it is left to the discretion of the judge, who ought not only to consider the quality of the threatenings, but also the persons as well threatening as threatened ; in the threatening, his power and disposition; in the person threatened, the sex, age, courage, pusillanimity, and the like. But if the testator afterwards, when there is no cause of fear, do ratify and confirm the testament, it seemeth to be good in law. Swin. 475, 476.

If a man makes a will in his sickness, at the over importunity of his wife, to the end he may be quiet; this shall be said to be a will made by restraint, and shall not be good. Styl. 427. [8 Vin. Ab. 167.] But if the

person

who makes the motion be not any ways suspected, and it also appears by some conjectures, that the [ 58 ]

sick person had a desire to make his will; in this case the testament is good. Law of Test. 53. (t)

(s) T. 42 Geo. 3. Scammell v. Wilkinson. Prohibition is to the spiritual courts, if a suit be instituted to obtain a general probate of the will of a woman made during coverture, though with her husband's consent, and though she survived him : for he could not by any assent of his enable her to dispose by any will made during her coverture of property, which she might acquire after his death, but only of property over which he himself had a disposing power. 2 East's Rep. 552.

(t) Civilians, whilst they declare that force and fraud vitiate a will, tolerate those alluring manners, and that engaging address, by which infirm testators are too often induced to disinherit their immediate heirs. Dig. 28. 5. 70. and 29. 6. 3. Cod. 6. 34. 3. Sande, lib. 4. tit. 1. def. 11. But with two exceptions : 1. Unless the testator be induced to make his will by false suggestions and lies, which are in truth a species of fraud; 2. Unless prayers and intreaties be so frequently repeated, that they operate as a sort of force. See Sande ubi supra, and Swinburne, pl. 7. § 4. and 18., with the authorities there cited. (Importunity, in its legal acceptation, must be such as the testator is too weak to resist, and in such a degree as to take away his free agency, rendering the act no longer the

act of the deceased. Kinleside v. Harrison, 2 Phill. R. 449.] With us also, if a will be proved to have been obtained by fraud or force, it will be set aside in the proper court. See [Wilby v. Thornhaugh, Pre. Ch. 123.) 1 Cha. Rep. 24. * Herbert v. Lownes, 8 Vin. Abr. 165. Goss v. Tracy, 1 P. Wms. 287. [2 Vern. 699. Thus though persuasion may be employed to influence the dispositions in a will, that does not amount to the idea of influence; and whether or not a capricious partiality has been shewn, the court will not inquire ; but where persuasion is used to a testator

a

9. T. 1725. Stephenson and Gardiner. A bill was brought Persons to set aside a will relating to a personal estate only, and to stay cented by the probate thereof, setting forth that the will was gained by fraud. (1) on his death bed, when even a word distracts him, it may amount to force and inspiring fear. Per Sir W. Wynne in Dickinson v. Moss, Prerog. Trin. T. 1790. MSS. Cas. 85. For although a man i may

have a mind of sufficient soundness and discretion to regulate his affairs in general, yet if such a dominion or influence be obtained over him as to prevent his exercising that discretion in the making his will, he cannot be considered as having such disposing mind” as will give effect to the will. Mountain v. Bennett, E. 1787, 1 Cox, 353.; Tr. at bar in Exch, on an issue of devisavit vel non; but the evidence to establish such a case was not determined. The will of a navy officer in favour of an agent on the advance of money, requires very clear proof of the animus testandi : it is not valid when executed as a mere security for debt, and was on that account annulled in Zacharias v. Collis, 3 Phill. R. 176. Again, where a legatee appeared to be the writer of the will as an attorney, more than ordinary proof of the authenticity of the will is called for. Paske v. Ollat, 2 Phill. Rep. 323; and by the Roman law, Qui se scripsit hæredem could take no benefit under a will. Dig. lib. 34. § 8. A will made by interrogatories is valid ; but undoubtedly wherever it is so made the court will be more on its guard against importunity, more jealous of capacity, and more strict in requiring proof of spontaneity and volition, than in an ordinary case; but if there is clear capacity of the animus testandi, and if the intention is or may be reduced into writing, the will is valid. Green v. Skipworth and others, 1 Phill. Rep. 53. In Billinghurst v. Vichers, formerly Leonard, 1 Phill. Rep. 187. Part of a will was established, and part held not to be entitled to probate, as being written by executor, and no sufficient proof of testator's assent given; but, on the contrary, his silent signature and active agency of the executor and residuary legatee were shewn. Courts of equity cannot set aside a will for fraud; for a will of personalty may be set aside for fraud in the spiritual court, and a will of real estate at law. Webb v. Claverden, 2 Atk. 424. Anon. 3 Atk. 17.; and see Bennet v.Vade, 2 Atk. 324. James v. Greaves, 2 P.Wms. 270. Nor will equity restrain probate in the proper court: but if fraud be proved, it will not assist the party practising it, but leave him to make what he can of it. Nelson v. Oldfield, 2 Vern. 76. see infra 238, note. But if the validity of the will has been already determined and acted on, equity will restrain proceedings in the prerogative court to controvert its validity. Sheffield v. D. of Buckingham, 1 Atk. 628. And where legacies were procured by fraud, equity has declared the party who has practised the fraud a trustee for the party prejudiced by it. Herbert v. Lownes, 1 Ch.R.13.; and other cases cited i Fonbl. Treat. on Equity, 2d ed. 69. n.] Error may also in some cases affect a will, especially if it appear that the testator was solely actuated by an almost insuperable mistake, which has made him neglect the performance of some urgent duty; for the presumption is, that had he not been led into an error, he could not thus have willed. And this is the case mentioned by Cicero in his treatise de Oratore, lib. 1. c. 38., and quoted by Grotius de J. B. & P. 2. 9. 6., and by lord Mans

the return is ill, and there must be a peremptory mandamus.

Stra. 891. Person

(s) 8. That testament is to be repelled, which is made upon under fear just fear, that is, such a fear as may move a constant man; as of restraint. the fear of death, or of bodily hurt, or of imprisonment, or of

the loss of all or most part of one's goods, or the like. Whereof no certain rule can be delivered, but it is left to the discretion of the judge, who ought not only to consider the quality of the threatenings, but also the persons as well threatening as threatened ; in the threatening, his power and disposition; in the person threatened, the sex, age, courage, pusillanimity, and the like. But if the testator afterwards, when there is no cause of fear, do ratify and confirm the testament, it seemeth to be good in law. Swin. 475, 476.

If a man makes a will in his sickness, at the over importunity of his wife, to the end he may be quiet; this shall be said to be a will made by restraint, and shall not be good. Styl. 427. [8 Vin. Ab. 167.]

But if the person who makes the motion be not any ways suspected, and it also appears by some conjectures, that the

sick person had a desire to make his will; in this case the tes[ 58 ]

tament is good. Law of Test. 53. (t)

(s) T. 42 Geo. 3. Scammell v. Wilkinson. Prohibition is to the spiritual courts, if a suit be instituted to obtain a general probate of the will of a woman made during coverture, though with her husband's consent, and though she survived him: for he could not by any assent of his enable her to dispose by any will made during her coverture of property, which she might acquire after his death, but only of property over which he himself had a disposing power. 2 East's Rep. 552.

1) Civilians, whilst they declare that force and fraud vitiate a will, tolerate those alluring manners, and that engaging address, by which infirm testators are too often induced to disinherit their immediate heirs. Dig. 28. 5. 70. and 29. 6. 3. Cod. 6. 34. 3. Sande, lib. 4. tit. 1. def. 11. But with two exceptions : 1. Unless the testator be induced to make his will by false suggestions and lies, which are in truth a species of fraud; 2. Unless prayers and intreaties be so frequently repeated, that they operate as a sort of force. See Sande ubi supra, and Swinburne, pl. 7.9 4. and 18., with the authorities there cited. [Importunity, in its legal acceptation, must be such as the testator is too weak to resist, and in such a degree as to take away his free agency, rendering the act no longer the

act of the deceased. Kinleside v. Harrison, 2 Phill. R. 4:49.] With us also, if a will be proved to have been obtained by fraud or force, it will be set aside in the proper court. See [Wilby v. Thornhaugh, Pre. Ch. 123.] 1 Cha. Rep. 24. Herbert v. Lownes, 8 Vin. Abr. 165. Goss v. Tracy, 1 P. Wms. 287. [2 Vern.699. Thus though persuasion may be employed to influence the dispositions in a will, that does not amount to the idea of influence; and whether or not a capricious partiality has been shewn, the court will not inquire ; but where persuasion is used to a testator

9. T. 1725. Stephenson and Gardiner. A bill was brought Persons to set aside a will relating to a personal estate only, and to stay Gented by the probate thereof, setting forth that the will was gained by fraud. (1) on his death bed, when even a word distracts him, it may amount to force and inspiring fear. Per Sir W. Wynne in Dickinson v. Moss, Prerog. Trin. T. 1790. MSS. Cas. 85. For although a man may have a mind of sufficient soundness and discretion to regulate his affairs in general, yet if such a dominion or influence be obtained over him as to prevent his exercising that discretion in the making his will, he cannot be considered as having such a “ disposing mind” as will give effect to the will. - Mountain v. Bennett, E. 1787, 1 Cox, 353.; Tr. at bar in Exch, on an issue of devisavit vel non; but the evidence to establish such a case was not determined. The will of a navy officer in favour of an agent on the advance of money, requires very clear proof of the animus testandi : it is not valid when executed as a mere security for debt, and was on that account annulled in Zacharias v. Collis, 3 Phill. R. 176. Again, where a legatee appeared to be the writer of the will as an attorney, more than ordinary proof of the authenticity of the will is called for. Paske v. Ollat, 2 Phill. Rep. 323; and by the Roman law, Qui se scripsit hæredem could take no benefit under a will. Dig. lib. 34. 88. 'A will made by interrogatories is valid ; but undoubtedly wherever it is so made the court will be more on its guard against importunity, more jealous of capacity, and more strict in requiring proof of spontaneity and volition, than in an ordinary case; but if there is clear capacity of the animus testandi, and if the intention is or may be reduced into writing, the will is valid. Green v. Skipworth and others, 1 Phill. Rep.

53. In Billinghurst v. Vichers, formerly Leonard, 1 Phill. Rep. 187. Part of a will was established, and part held not to be entitled to probate, as being written by executor, and no sufficient proof of testator's assent given ; but, on the contrary, his silent signature and active agency of the executor and residuary legatee were shewn. Courts of equity cannot set aside a will for fraud; for a will of personalty may be set aside for fraud in the spiritual court, and a will of real estate at law. Webb v. Claverden, 2 Atk. 424. Anon. 3 Atk. 17.; and see Bennet v. Vade, 2 Atk. 324. James v. Greaves, 2 P.Wms. 270. Nor will equity restrain probate in the proper court: but if fraud be proved, it will not assist the party practising it, but leave him to make what he can of it. Nelson v. Oldfield, 2 Vern. 76. see infra 238, note. But if the validity of the will has been already determined and acted on, equity will restrain proceedings in the prerogative court to controvert its validity. Sheffield v. D. of Buckingham, 1 Atk. 628. And where legacies were procured by fraud, equity has declared the party who has practised the fraud a trustee for the party prejudiced by it. Herbert v. Lownes, 1 Ch.R.13.; and other cases cited i Fonbl. Treat. on Equity, 2d ed. 69. n.] Error may also in some cases affect a will, especially if it appear that the testator was solely actuated by an almost insuperable mistake, which has made him neglect the performance of some urgent duty; for the presumption is, that had he not been led into

an error, he could not thus have willed. And this is the case mentioned by Cicero in his treatise de Oratore, lib. 1. C. 38., and quoted by Grotius de J. B.& P. 2. 9. 6., and by lord Mans

fraud, and by misrepresenting the plaintiffs, who were the half brothers and sisters of the testatrix; and alleging, that the will was falsely read to her; and setting forth divers instances of fraud, on the part of the defendants, in procuring this will. The defendants, as to that part of the bill which sought to set aside the will, and to stay the proceeding, demurred to the jurisdiction of the court: forasmuch as upon the face of the bill it appeared, that the plaintiffs were improper to sue here, in regard the spiritual court had the proper cognizance of wills relating to personal estates, and could determine fraud concerning them. After which, motions were made before the lords commissioners and the lord chancellor King for an injunction. But the court was against it: for the spiritual court hath jurisdiction of fraud relating to a will of a personal estate, and can examine the parties by allegation touching this fraud; and if the will was falsely read to the testatrix, then it is not her will. 2 P. Will. 286. (6)

T. 1686. Archer and Mosse. The testator, when in perfect health, had made his will, and thereby gave to the plaintiff Archer, his nephew, the greatest part of his personal estate, to the value of 5000l. But one Bridget Sandyman, his maid servant, had in his sickness prevailed upon him to make another will, and field in Brady v. Cubitt, 2 Doug. Rep. 39.

66 What cause,” says Cicero, “could be of greater moment than that of the soldier, whose death being announced at home by a false messenger from the army, the father believing the report, altered his will, appointed another person his heir, and died?”

The affair was brought before the centumvirs when the soldier returned home and sued for his paternal inheritances, as a son passed over in his father's will; namely, the question of civil law in that cause was, can a son be disinherited of his paternal goods, whom his father has neither appointed heir by his testament nor disinherited by name?” The last reason mentioned by the author would have been sufficient to annul the will as testamentum inofficiosum, by the civil law; but the error which induced the father to alter his will, seems also to be relied on by Cicero, and it is in this view of the case that the passage is quoted by the two latter great authorities. It must however be

very

difficult to establish by evidence, except in a case equally strong with that here put, that any alleged error, false rumour, or misrepresentation operated so irresistibly on the mind of a testator as to be the sole efficient cause that induced him to make or to alter his will in a particular manner. And perhaps such a presuniption would not be sustained, except in a case where the error was equally unavoidable, and the intention of the testator equally apparent, as well as his duty equally urgent, with those of the father above mentioned. See Bodmin v. Roberts, 3 Ch. Ca. 61.; and James v. Greaves, 2 P. Wms. 70. [Bennet v. Vade, 2 Atk. 243. Webb v. Claverden, ib. 424. Anon. 3 Atk. 17.

In Napier's case, 1 Phill. Rep. 83. Probate of the will of an officer, supposed to be killed in the battle of Corunna in 1809, was revoked, and the will re-delivered to him on his personal appearance before the judge.]

(6) See Plume v. Beale, 1 P. W. 389.

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